Ekermawi v Commissioner of Police, NSW Police Force

[2019] NSWCATAD 79

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79
Hearing dates:	8 February 2019
Date of orders:	02 May 2019
Decision date:	02 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Tibbey, Senior Member A Lowe, General Member
Decision:	Complaint upheld
Catchwords:	HUMAN RIGHTS – racial vilification – meaning of “public act” – “capacity to incite serous hatred, ridicule or contempt” – relevance of intention – defence or exception of “reasonably and in good faith”
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), ss4, 20C, 108.
Cases Cited:	Bropho Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 Burns v Cunningham [2011] NSWADT 240 Burns v Dye [2002] NSWADT 32 Burns v Laws (EOD) [2008] NSWADTAP 32 Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2018] NSWCATAD 10 Collier v Sunol [2005] NSWADT 261 Ekermawi v Nine Network Australia Pty Ltd [2019] NSWCATAD 29 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 Jones v Trad [2013] NSWCA 389 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Nicholls and Nicholls v Director General, Department of Education and Training (No 1) [2009] NSWADTAP20 Russell v Commissioner of Police, New South Wales Police Service & Ors [2001] NSWADT 32 Sunol v Collier and Anor (No 2) [2012] NSWCA 44 Veloskey v Karagiannakis [2002] NSWADTAP18
Texts Cited:	Neil Rees, Simon Rice and Dominique Allen Anti-Discrimination Law Second Edition, Federation Press, 2014
Category:	Principal judgment
Parties:	Sam Ekermawi (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Self-represented (Applicant) K. Eastman SC (Counsel for Respondent) Minter Ellison (Solicitors for Respondent)
File Number(s):	2018/00229782
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. The complainant, Mr Ekermawi, describes himself in his affidavit of 30 October 2018 as “an Australian Ethnic Muslim of a Palestinian National Origin.”

2. He alleges that a training exercise conducted by the Respondent, the NSW Police Force at Sydney’s Central Railway Station during the late evening of 17 October 2017 and the early morning of 18 October 2017 racially vilified people of Palestinian, Arab, Middle Eastern and/or Muslim origin.

3. The NSW Police Force named the training exercise ‘Exercise Pantograph’. They state that they conducted the exercise to test the coordination and response to a terrorist or high risk incident. The exercise involved approximately 200 people from the NSW Police Force and other NSW public sector government agencies, namely Transport NSW, Fire and Rescue NSW and Ambulance NSW. Two members of the NSW Police Force acted as “active armed offenders”. Other members of the NSW Police Force and members of the other agencies involved acted either as victims of the “offenders” and/or as themselves - that is, as members of the NSW Police Force or the other agencies involved.

4. On 18 October 2017 the NSW Police Force publicised the exercise by issuing a media release, an almost 9 minute long video (referred to in these Reasons for Decision as ‘the video’) it had produced about the preparation for the exercise and footage of the exercise itself and some photographs or stills from the video. It issued these to a wide variety of media organisations for publication and broadcasting. The material received NSW and national print, television, online and radio coverage.

The Complaint

5. The video and some of the photographs depict the two “active armed offenders” using what look like semi-automatic firearms. They hold up “hostages”, wound some with knives and push some people acting as members of the public to the ground. One “victim” is shown apparently unconscious and bleeding, with a gunshot or serious knife wound to the abdomen. Members of the NSW Police Force are depicted holding pretend guns, responding to the assault and subduing the “offenders”.

6. The two "offenders” are wearing headscarves. One of the headscarves appears in the video and photographs to be white in background with black checks and the other appears to be olive green in background with black checks. There are a number of references made in the video to Islamic State including displaying a black flag often associated with Islamic State and presenting the one-fingered salute also associated with that group.

7. The Applicant alleges the headscarves worn by the two “offenders” are headscarves worn by Palestinians, Arab people, Middle Eastern people and/or Muslims. He alleges the use of these headscarves incited hatred or serious contempt of Palestinians, Arabs, Middle Eastern people and/or Muslims on the grounds of their race.

8. The Respondent denies there was any racial vilification.

Request by the Applicant for an adjournment

9. At the commencement of the hearing on 8 February 2019, the Applicant sought an adjournment on the ground that he wished to engage the services of a legal practitioner. The Applicant had given notice to the Respondent of his intention to seek an adjournment on 7 February 2019, the day before the hearing.

10. The Respondent objected to the adjournment on the ground that the Applicant had already had sufficient time to engage a legal practitioner to act on his behalf.

11. We refused the adjournment application and now give reasons for that decision.

12. The Applicant’s complaint was referred to the Tribunal by the Anti-Discrimination Board on 17 July 2018. Orders and Directions were made in the matter on approximately four occasions between the referral and the date of the hearing.

13. The Tribunal has a duty, (under s36 of the Civil and Administrative Tribunal Act, 2013), to ensure matters are heard in a timely manner.

14. The Applicant gave evidence he had experienced illnesses in recent months, but provided no medical evidence about the nature, severity or duration of any illness. We could not be satisfied any illness was of such severity or duration as to reasonably prevent the Applicant from obtaining legal representation during the period since the matter was referred to the Tribunal for hearing.

15. We decided there had been sufficient opportunity for the Applicant to engage a legal practitioner if he wished to do so. We therefore rejected the application for an adjournment and the hearing proceeded.

The law

16. ‘Racial vilification’ is defined in section 20C (1) of the Anti-Discrimination Act (1977) (‘the Act’):

‘It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.’

17. ‘Public act’ is defined in section 20B of the Act to include:

‘(a)   any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b)   any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c)   the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.’

18. Section 20C (2) of the Act lists the exceptions to the definition of public act. In particular, a public act will not be unlawful if it is:

‘(c)   a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.’

19. ‘Race’ is defined in Section 4 of the Act:

‘"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.’

What must Mr Ekermawi demonstrate to succeed in his complaint?

20. For Mr Ekermawi to succeed in his Complaint he must demonstrate:

1. There was one or more public acts

2. The public act or acts had the capacity to incite hatred or serious contempt;

3. The capacity to incite was on the ground of race.

21. But if the Respondent can show that the public act or acts was/were undertaken “reasonably and in good faith for purposes in the public interest, including discussion or debate about the expositions of any act or matter” then he will not succeed in his Complaint.

The Applicant’s evidence

22. The Applicant alleges that during the training exercise, the two members of the NSW Police Force playing the parts of the “offenders” were dressed in a headscarf known as a keffiyeh, (also spelled ‘koffiyah’ and ‘kaffiyeh’ by the Applicant), commonly associated with Palestinian, Arabic, Middle Eastern and/or Muslim people. He alleges the white and black checked headscarf in particular is referred to by the Applicant as “a symbol of Palestinian heritage and culture”.

23. The Applicant quotes another person as saying that:

“The kaffiyeh, particularly the black and white one, long ago became one of the most important and visible symbols of identification with the Palestinian struggle” and

“the most evocative symbol of Palestinian national identity is the Palestinian keffiyeh, particularly the black and white headdress that, despite its current sad state remains the closest symbol to the hearts of Palestinians.”

24. The Applicant complains that dressing the people playing the parts of “terrorists” in “Arabic Palestinian head dress” incited hatred and/or serious contempt for Palestinian, Middle Eastern and/or Arabic people. He claimed it was “demeaning to Arabic, Muslim and Middle Eastern communities” and amounted to racial profiling.

25. The Applicant, who describes himself as an ethnic Palestinian, alleges this caused great distress to Palestinians, creating an impression they are associated with the Islamic State as terrorist enemies and therefore people to be hated and held in serous contempt. At paragraph 12.3 of his Points of Claim, he quotes from a statement made by Mr Izzal Abdullhadi, the head of the general delegation of Palestine to Australia:

“The head dress, known as the Kaffiyeh, is the symbol of Palestinians heritage and culture. It touches the Palestinians their own value system and their feelings and emotions so that they were really distressed by using this to stimulate or give an image about Palestinians as if they are terrorists”.

26. The Applicant presented evidence that Mr Abdulllhadi had complained to the NSW Police Force shortly after the release of the video about the use of what he said was the keffiyah, which left “many people really upset”. Mr Abdullhadi’s complaint was reported by the ABC as indicated at page 11 of the Report of the President of the Anti-Discrimination Board. It was also reported that “Footage released by NSW Police of a counter-terrorism training exercise conducted in Sydney’s Central Railway station was heavily criticised on SBS’s Arabic 24’s Facebook page for portraying ‘fake terrorists’ wearing Palestinian head scarves.”

27. The Applicant states that the NSW Police Force released the photographs and the video not only in NSW and throughout Australia but internationally, “tarnishing the Palestinians’ name”. He alleges the headscarf worn by each of the two “offenders” was a Palestinian and/or Arab garment. He alleges the NSW Police Force intentionally dressed the two “offenders” in headscarves they knew to be associated with Palestinians, Arabs and/or Muslims. He states there are many other head coverings not associated with Palestinians, Arabs and/or Muslims the “offenders could have worn if it was necessary for their heads and/or faces to be covered”.

28. The Applicant objects to the portrayal of Palestinians, Arabs and/or Muslims as terrorists. He alleges the video's portrayal of these groups in this manner was an expression of racial hatred and serious contempt towards these groups that was designed to spur others to adopt the same attitudes.

The Respondent’s evidence

29. The Respondent’s evidence is that Exercise Pantograph was an Active Armed Offenders Training Program. It involved approximately 200 people, from the NSW Police Force and also from the NSW Ambulance Service, Transport NSW and Fire and Rescue NSW.

30. Chief Inspector Colin Green was the Officer responsible for the development and delivery of terrorism training exercises for the NSW Police Force at the time of Exercise Pantograph. He gave evidence by affidavit and during the hearing. He stated the aim of the training exercise was to practise and enhance the coordinated response of the NSW Police Force and partner agencies to an act of terrorism. For the purposes of this particular exercise the NSW Police Force conducted a participants’ briefing in early October 2017 (part of which is depicted in the NSW Police Force video released to media organisations). The actual training exercise took place between 11pm on 17 October 2017 and 4am on 18 October 2017 at Central Railway Station in Sydney. Central Railway Station was closed to the general public throughout the exercise. Chief Inspector Green explained that Active Armed Offenders are defined as persons who are “actively engaged in killing or attempting to kill people” and who are “reasonably suspected to continue doing so while having access to additional potential victims.”

31. He agreed that during the exercise the two officers playing the parts of the Active Armed Offenders pretended to stab participants with fake knives, shoot participants with fake guns and take a small number of participants hostage within a train carriage. He also agreed the participants held a flag against a train carriage window and the Active Armed Offenders raised their fingers in a one-fingered salute which is associated with Tawhid and has been appropriated by the terrorist organisation Islamic State.

32. Chief Inspector Green stated the training exercise was meant to be as realistic as possible. Islamic State was selected as the terrorist group for the purposes of the exercise because NSW Police Force perceived it to be a group likely to be behind a future terrorist act in Australia.

33. He said the clothing worn by those playing the parts of the Active Armed Offenders” was intended to be “non-specific.” The “offenders” wanted to hide their identity and he agreed to this. He also personally “passed” their head coverings as acceptable for the purposes of the exercise. He said one of the Active Armed Offenders wore a skeleton face mask traditionally associated with criminal motor cycle gangs. He also wore a green and black checked headscarf. The other wore a black and white checked headscarf covering both his head and face. Both the Active Armed Offenders wore blue jeans, a black T-shirt and a camouflage green/brown military style back pack.

34. The Respondent agreed the headscarves used were “similar” to the keffiyah, but claimed any similarity was coincidental and not intentional. The scarves worn by the Active Armed Offenders were purchased from an army disposal store a number of years earlier as ‘jungle and desert coloured’ camouflage.

35. The Respondent denies the Active Armed Offenders portrayed Palestinian people or any other race or ethnic group, saying:

“There is no evidence to support the claim the “active armed offenders” were portraying a particular race or ethnic group. The clothing worn by the police officers was a non-specific mix of criminal/terrorist style items. Terrorists do not have an ethnocultural identity. There was no intention to stereotype any members of the community. There was no focus on or consideration of Palestinian issues.”

36. Chief Inspector Green’s evidence, as set out in his affidavit at paragraph 30 is that:

“The Officers’ costumes were not chosen to identify a person of any specific race and, in my opinion do not identify a specific race.”

37. At the hearing, Chief Inspector Green produced what he stated were the two actual headscarves used in the exercise. The Respondent was opposed to these being admitted into evidence as exhibits because they belonged to individual Officers. The Tribunal permitted the Respondent to supply photographs of those headscarves, which form part of the evidence.

Was there a public act or acts?

38. There are potentially two public acts - the training exercise itself where members of the various participating agencies were able to observe what was happening, and the photographs and videos released to the media.

39. In their initial response to Mr Ekermawi’ s complaint, by letter to the Anti-Discrimination Board dated 16 March 2018, at paragraph 4.4 – 4.5, the Respondent admitted it was engaged in a “public act” for the purposes of s20C of the Anti-Discrimination Act, 1977 (NSW) (‘ADA’) because the conduct was a form of communication to the public which included screening and playing tapes or other recorded material, and/or conduct (not being in the form of communication referred to in paragraph (a) observable by the public, including …the wearing of clothing….

“The NSW Police Force was engaged in a public act, for the purposes of s20C of the ADA as the video of the training exercise was released to the public via the NSW Police Force media unit. It was intended that the video be released to the public and it was intended that the audience of the video was ‘the general public’ of NSW.”

40. These references to there being a public act appear to refer to the release of the videos and photographs only, not to the potential public act of the training exercise itself.

41. At the hearing, the Respondent submitted there was no public act. It submitted that given the actual conduct of the training exercise was closed to the public it could not be a public act. It submitted that the release of the photographs and videos was an act of distribution and therefore covered by s20B (c) not s20B (a) or (b). The importance of this is that s20B (c) states that for distribution to be a public act it must involve “knowledge (our emphasis) that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.” The Respondent argues that it had no such knowledge.

Was the training exercise itself a public act?

42. In Russell v Commissioner of Police, New South Wales Police Service & Ors [2001] NSWADT 32 (26 February 2001) the only people present at an assault by police officers at 3am in a secluded place outside a town were the 11 police officers, the Aboriginal victim of the assault and 3 non-Aboriginal persons some distance away who witnessed the assault. It was held that this assault and accompanying racial epithets was a ‘public act,’ observable by the public, comprising words and conduct that incited those officers, within the meaning of the anti-vilification provisions of the Act and vilification was established. That finding was not disturbed on appeal.

43. This case was somewhat similar, in that there were few if any passers-by but the conduct, or some of it, was potentially observable by members of the general public who happened to pass by the various entrances to Central Station during the exercise. While the Station was closed to the public during the exercise it was not conducted in a completely private setting. All those involved in the exercise were actually witnesses or could have been witnesses. While many of those involved were police officers, others came from a variety of different NSW public sector agencies.

44. The Tribunal finds that to engage approximately 200 people in an exercise that takes place in a public place, although closed to the general public by the police to the extent possible throughout the exercise, is a public act within the meaning of s20B(a). There are two reasons for this finding: firstly, it involved communication to a section of the public, namely those involved in the exercise, not all of whom were members of the NSW Police Force, and, secondly, it is also possible that it was capable of being seen by members of the general public passing by the various entrances to Central Station, although we accept there is no evidence as to who did in fact pass by and what, if anything, they saw and heard.

42. The Tribunal finds that the training exercise also comes within the definition of public act set out in s20B (b) because it involves “conduct observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia” - that is, in the form of allegedly Palestinian and/or Arabic headscarves and the use of a flag associated with ISIS. Given s20B (b) expressly excludes conduct that falls within s20B (a), it is clear s20B (b) only comes into operation if the conduct does not fall within s20B (a). We therefore include our finding that this act falls within s20B (b) in case we are proved wrong about our finding that it falls within s20B (a).

43. We find that to the extent that the training exercise itself is not a public act within the definition in s20B (a), it is a public act within s20B (b).

Was the release of the photos and video a public act?

47. The Tribunal finds that sending out a video and photographs depicting the exercise to the media for them to publish/broadcast them to the general public was also a public act within the meaning of s20B because doing so is a form of communication to the public. Decisions in NSW over a lengthy period have consistently so held: see Collier v Sunol [2005] NSWADT 261.

48. As stated earlier, in the section on the Respondent’s evidence, during the hearing, (rather than accepting that it was a public act as they had in their earlier written submissions), the Respondent argued this conduct does not fall within either s20B (a) or (b) but within s20B (c) because it was an act of distribution.

49. In Report No 92 of the NSW Law Reform Commission’s Report, Review of the Anti-Discrimination Act 1977 (NSW) the NSW Law Reform Commission comments about s20B(c) that:

“This definition appears to have been designed to deal with the distribution of handouts and leaflets either in public places or through mailboxes. The requirement that the person knew that the material was vilifying prevents those innocently distributing material, without being aware of its contents (our emphasis), from being liable.”

50. We accept the NSW Law Reform Commission’s view as being a rational basis for the clause in that it provides a rationale for its existence. It differentiates it from s20B (a) and (b). In other words, it “gives it work to do” that is different from the definitions in s20B (a) or (b). As a consequence, we find that the Respondent’s public act in releasing the video and photographs to the media, when it was the author and originator of the material, rather than a mere ‘innocent’ disseminator in a chain of dissemination, should be regarded as falling within the terms of s20B(a) or (b), rather than within the terms of s20B(c).

51. As with the public act of the training exercise itself, we find that to the extent that the release of the video and photographs to the media for later viewing by members of the public is not within the definition in s20B (a), it falls within s20B (b).

Was there incitement to hatred or serious contempt?

52. Bathurst CJ, Presiding in the Court of Appeal in Sunol v Collier and Anor (No 2) [2012] NSWCA 44 stated at [41]:

1. “Incite” means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.

2. It is not necessary for a contravention that a person actually be incited.

3. It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member of the class to whom it is directed.

4. It is not necessary to establish an intention to incite.

53. The particular audience or likely audience must be identified and considered in determining this issue: Sunolv Collier and Anor (No 2) [2012] NSWCA 44 at [34]; [61]; Jones v Trad [2013] NSWCA 389 at [62], [63].

54. In Jones v Trad [2013] NSWCA 389 at [56], Ward JA (as she then was) cited Burns v Laws (No 2) [2007] NSWADT 47 at [111], and stated that an objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience is an objective test.

55. An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their race (the relevant reaction): Jones v Trad [2013] NSWCA 389 at [53].

56. The Applicant does not have to prove that anyone was actually incited, but that, objectively assessed, the public act had the capacity to incite hatred towards or serious contempt for a person or group of persons on the ground of their race.

57. As stated in Burns v Sunol [2018] NSWCATAD 10 at [39]:

39. “NCAT and the ADT have consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie).”‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

58. At [40] the Tribunal in Burns v Sunol [2018] NSWCATAD 10 cites Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17] as accepting these definitions. We also accept them.

The relevant audience

59. The audience for all or parts of the training exercise included members of the NSW Police Force and people who worked with Transport NSW, Ambulance NSW and Fire and Resources NSW. It also included, or could have included, members of the general public who happened to pass by one of the entrances to Central Station during the operation.

60. It is not clear what level of briefing each of the participants in the exercise had in early October or at any other time before the briefing. But, briefed or not, we are comfortably satisfied that, as NSW public servants, the 200 participants would come from the same wide range of backgrounds (including education level) and hold the same wide range of views as the general public.

61. We therefore find that the relevant audience for the training exercise is essentially the same as an ordinary member of the public at large.

62. The photos and video were released by NSW Police Force to a wide range of media outlets, many of whom then published and broadcast the material. Given this wide range, we find the relevant audience for the video and photographs is also an ordinary member of the public at large.

Capacity to incite hatred or severe contempt

63. It is clear from the video that the simulated operation was meant to depict a highly stressful situation where heavily armed men boarded a train, knived and shot people, held hostages on the train, then ran away and tried to escape, with the NSW Police Force in pursuit and eventually detaining them.

64. The photographs and video of the operation show the perpetrators of violence, wearing the allegedly Palestinian and/or Arabic headscarves, using apparently real submachine guns and knifing people with apparently dangerous long knives, displaying the ISIS flag, pushing people to the floor of train carriages, holding up passengers at gun point so that their hands are against the window of the carriage in gestures of terror or surrender. It also shows one person simulating being wounded by a gunshot or knife wound to the abdomen and bleeding extensively.

65. The nature of the operation depicted a terrorist action, with those playing the “offenders” terrorising members of the public and injuring them.

66. We are comfortably satisfied the nature of the training exercise was such that it would have had the capacity to incite, in an ordinary member of the general public, feelings of hatred for or serious contempt towards people who look similar to those who depicted the “offenders”, and/or towards people who dress in a similar way to the way in which the “offenders” were dressed. The exercise was run by the NSW Police Force and specifically organised to be as ‘real’ as possible. The real life simulation involved serious threat, injury and a potentially “life and death” situation. There is further discussion on this point in the section under the heading ‘Did the “offenders” use of the headscarves have the capacity to incite hatred or serious contempt against Palestinians and/or Arabs/Arabic people’ below.

Was the incitement to hatred or serious contempt on the ground of race?

67. The expression “on the ground of” has been variously paraphrased as “by reason of” or “on the basis of” or “because of”. Jones v Trad [2013] NSWCA 389 at [98]; Nicholls and Nicholls v Director General, Dept of Education and Training [No 2] [2009] NSWADTAP 20 at [28]; Burns v Sunol (No 2) [2018] NSWCATAD 120 at [52] – [53]; Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102; Burns v Dye [2002] NSWADT32).

68. Section 4 of the Act defines “race” as including “colour, nationality, descent and ethnic, ethno-religious or national origin”.

Are keffiyahs associated with a particular race or races?

69. In his affidavit Chief Inspector Green denied that the use of the head scarves identified a specific race. Yet in his oral evidence he emphasised that the headscarves were used not just to hide the identity of those playing the “offenders” but also to simulate reality. He said their use was appropriate because the Active Armed Offenders were meant to simulate members of ISIS, also known as ISIL. He stated that from social media it appeared that ISIS/ISIL fighters wore such headscarves.

70. The Respondent also argued that it is not just Palestinians, Arabs or people from the Middle East who wear a keffiyah. They argued the keffiyah has become a fashion statement and as such is widely worn even in ‘the West’.

71. The Applicant, who describes himself as Palestinian, alleges the black and white checked keffiyah used in the exercise is “Palestinian” and the green and black checked one is “Arabic including Palestinian”. As indicated earlier, he also presented evidence of other people in the Palestinian and Arab communities, including but not limited to the head of the Palestinian Delegation to Australia, complaining about the use of keffiyahs in Exercise Pantograph. We accept that evidence.

72. The Centre for South Asian and Middle Eastern Studies, University of Illinois “Middle Eastern Dress Vocabulary” document found at pp188-191 of the Respondent’s Hearing Documents states in relation to the keffiyah as follows:

“Keffiyah – a traditional headdress of the Middle East, made of square cloth, folded and wrapped into various styles around the head. There are many local variations of the keffiyah..It is usually made of white cotton (popular in the Gulf states); however there are also checkered patterns in red (usually associated with Jordan) or black (usually associated with the Levant – Israel, Lebanon, Palestinian territories, Egypt and Syria). …The keffiyah has various spellings (kaffiyah, keffiya, kaffiya or kufiya)…”

73. An article in the Respondent’s Hearing Documents entitled “Kufiya Nouveau” indicates that in some quarters the keffiyah is a fashion item but also states, at 192 that “the kufiya has long been a sign of Arab identity,” at 200 that “it was the nationalist movements of Palestinians that in the 1960’s first made kuffiyas globally famous” and at 201 “In the 1960’s black-and-white kufiyas became synonymous with Palestinian nationalism..” A further article at 202 of the Respondent’s hearing documents described the keffiyah as “this symbol of Palestinian national struggle”.

74. The Tribunal finds that the headscarves used in the operation were keffiyahs, one dull white or dull cream and black and the other olive green and black. We accept the evidence of the Applicant that the dullness of the white colour of the actual white and black headscarf shown to us by the Respondent is probably due to it being an old keffiyah. But, in any case, we note that its dullness is not relevant because in the photographs and video of the training exercise released to the media, it looks white and black.

75. The Tribunal prefers the Applicant’s evidence that the headscarves are keffiyah associated with the Palestinian people and also with Arab people from a number of countries. We prefer this evidence because the Applicant, whom we accept is a Palestinian, gave cogent evidence regarding the matter, on which he was not cross examined. We also accept that, as set out above, a number of the documents of the Respondent including the “Middle Eastern Dress Vocabulary” document compiled by the Centre for South Asian and Middle Eastern Studies, University of Illinois acknowledge that the keffiyah is a headscarf that is associated with the peoples of various Arab countries, with the black and white keffiyah being particularly associated with the Palestinian people.

76. A further issue in relation to race is whether our previously identified audience for both public acts, that is, the ordinary member of the general public, would understand the head scarves to be Palestinian, Arab and/or Middle Eastern, as the Applicant alleges.

77. We find that it does not matter whether in recent years keffiyah have also been used as “a symbol of resistance and protest or as a disguise” or worn as a fashion item (as discussed by the article entitled “Kufiya Nouveau” at 195 of the Respondent’s documents). An ordinary member of the general public, would still have identified the head scarves as being Palestinian and/or Arab. This is because these scarves are widely worn by Palestinians and Arabs who live in various parts of the world, but particularly by Palestinians and Arabs who live in various parts of the Middle East. Palestinians and Arabs are often seen on Australian news and current affairs programs, in photographs in the Australian press and online wearing such scarves.

78. We are therefore comfortably satisfied that both headscarves would be identified by the ordinary member of the general public as Arabic and/or Middle Eastern. Further, we are also comfortably satisfied that the black and white headscarf would also generally be identified by the ordinary member of the general public as being Palestinian. It would be identified as such particularly, but not only, by middle aged and older ordinary members of the general public because of its association with the late Yasser Arafat, who appeared over many years in news and current affairs media wearing a black and white keffiyah.

Are Palestinians, Arabs, Middle Eastern people and/or Muslims ‘races’ as defined by the Act?

79. The Respondent argued in its submissions at paragraph 111 that the terms ‘Australian Palestinian’, ‘Australian Arab’ and ‘Australian Muslim’ as used by the Applicant do not constitute ‘races’ within the meaning of s4 of the Act.

80. While the Applicant used the term ‘Australian’ to qualify the various racial groupings he lists in his complaint, he also used these terms without the addition of the words ‘Australian.’ We have therefore considered whether the terms ‘Palestinian’, ‘Arab’/ ‘Arabic’, ‘Middle Eastern’ and ‘Muslim’ constitute a race or races.

81. We find the terms ‘Palestinians’ and ‘Arabs’/’Arabic’ both constitute races for the purposes of s4 of the Act on the basis of descent and ethnic origin. Addition of the term ‘Australian’ does not detract from this as, in our view ‘Australian Palestinian’ is a shorthand way of referring to ‘Australians of Palestinian descent and ethnic origin’. Similarly, ‘Australian Arabs’ is a shorthand way of referring to ‘Australians of Arab descent and ethnic origin.’ Both of these terms would fall within the definition of ‘race’ for the purpose of s4 of the Act because they relate to the descent or ethnic origin of an Australian person.

82. Whether those viewing the public acts would recognise the head scarves as “Muslim” does not assist the Applicant in his claim as the term “Muslim” as previously determined by this Tribunal does not fall within the definition of race. The most recent determination is relation to this issue is Ekermawi v Nine Network Australia Pty Ltd [2019] NSWCATAD 29, where the Tribunal found that there was insufficient evidence, especially objective evidence, before it to conclude that Muslims could be regarded as having an ‘ethno-religious’ origin and therefore be regarded as a race for the purposes of s4 of the Act. In this case, the Applicant has not provided any evidence that Muslims are an “ethno-religious” group within the meaning of s4 of the Act.

83. It is not necessary to decide whether the term ‘Middle Eastern” constitutes a ‘race,’ in view of our finding that Palestinians and Arabs constitute races for the purposes of s4 of the ADA.

Did the use of the headscarves have the capacity to incite hatred or serious contempt of Palestinians and/or Arabs/Arabic people on the ground of their race?

84. For the reasons given in the section The Applicant’s Evidence above, the Applicant says the use of the keffiyahs had the capacity to incite hatred or serious contempt of Palestinians and/or Arabs/Arabic people on the ground of their race. The Respondent submits there is no evidence of any kind to support such an assertion.

85. Given our findings above, and when assessed objectively, we find that the wearing of the keffiyahs by the two people playing the “offenders” portrayed Palestinians and Arabs/Arabic people as potential perpetrators of violent acts of terrorism.

86. The keffiyahs were used in Exercise Pantograph alongside other symbols such as the Islamic State terrorist organisation salute and flag appropriated by the Islamic State organisation. In the context of the whole exercise, one that the Respondent told us was organised to be as ‘real ‘as possible, the keffiyahs worn by the “offenders” had the capacity to encourage the ordinary member of the public taking part in the exercise, witnessing it, seeing some of the photos depicting the exercise and/or watching the video depicting the exercise, to consider that Palestinians and/or Arabs were to be feared, despised, hated, and/or held in serious contempt as possibly or probably being terrorists. This is especially so given it is the NSW Police Force who chose to use the keffiyah and link it with a terrorist act committed in the name of ISIS/ISIL.

87. In our view, the linking of a particular racial group or groups, (in this case Palestinian and/or Arab people) by those who are entrusted with protecting the public from such acts, (the NSW Police Force), with a likelihood of committing a terrorist act has the capacity to encourage, rouse, and stir up (to use the language of Bathurst CJ, in Sunol v Collier and Anor (No 2) [2012] NSWCA 44 at [41]) the ordinary member of the public to fear, and therefore hate, or be severely contemptuous of, people from those groups on the ground of their race.

Is intention relevant?

88. The Respondent states they had no intention of vilifying any racial group by allowing the two “offenders” in the exercise to wear keffiyahs. The Applicant claims the Respondent knew what it was doing by using the keffiyahs and therefore set out to vilify Palestinians and/or Arabs/Arabic people.

89. The focus of the Act’s vilification provisions within the definitions of public act we have found to be relevant in this case, that is, s. 20 B (a) and (b) is on the effect of the allegedly vilificatory words or conduct on the ordinary members of the audience witnessing or hearing the words or conduct, rather than on the intention of the person or persons responsible for those words or that conduct.

88. We find that intention is largely irrelevant in this case - although see the section immediately below. This is because the main issue to be determined is whether the words and/or conduct have the capacity to incite hatred towards, serious contempt for, or severe ridicule of a person, or group of persons on the ground of the race, as opposed to whether a person or persons intended to incite hatred towards, serious contempt for or severe ridicule of a person or persons on the grounds of race.

89. The motive or intention of the Respondent is irrelevant to the question of whether vilification has occurred for the purposes of s20B(a) and/or (b) of the Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis [2002] NSWADTAP18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; This was accepted by Bathurst CJ, without deciding, in Sunol v Collier (No 2) [2012] NSWCA 44 at [30-31]. Were the position otherwise, ignorance and/or prejudice could seek to be excused on the basis that there was “no intention” to vilify.

Were the public acts done reasonably and in good faith for purposes in the public interest, including discussion or debate about an exposition of any act or matter?

92. In its submissions written before the hearing, the Respondent argued that it acted both reasonably and in good faith for public interest purposes when it conducted Exercise Pantograph and when it released the photographs and video about the exercise to the media. The respondent stated it relied on the exception to racial vilification in s. 20C(2)(c) of the Act and argued that therefore it could not be found to have committed racial vilification.

93. During the hearing the Respondent told us it was no longer relying on this exception. But the day after the hearing the Respondent wrote to the Tribunal saying it did still rely on this exception.

94. The Applicant objected to the Respondent’s request stating that they had had their chance for this to be considered during the hearing and had decided at that point not to rely on the exception.

95. Rather than rule on whether the Respondent should or should not be allowed to rely on this exception given their change of mind, we have decided to rule on whether the exception applies in this case. This is consistent with the statutory obligation to determine matters efficiently and takes into account that the Tribunal’s finding does not impact unfavourably on the Applicant.

96. In Burns v Laws (EOD) [2008] NSWADTAP 32 the Appeal Panel stated at [29]:

“As to the exception itself, the following statements have broad, though not universal, support:

i. The onus lies on the Respondent to satisfy the tribunal of fact that the conduct was done ‘reasonably and in good faith’ (in NSW, s 104 of the ADA is relied upon).

ii. The inquiry as to whether the conduct was ‘done reasonably and in good faith’ is not confined to evidence relating to the ‘doing’ of the act (the method), but extends to the contents (the message).

iii. In forming a view as to whether the conduct was done reasonably and in good faith, relevant material includes the content of the offensive material (in this case the broadcast), any evidence given by the Respondent as to the circumstances, reasons and motives for the publication, any inferences that may reasonably be drawn from the material itself in respect of these matters, the context of the publication including any pattern of conduct by the publisher of the statements.

iv. While the expression ‘done reasonably and in good faith’ may be regarded, broadly speaking, as a composite one, it contains two elements or requirements, to be addressed separately.

v. Whether the conduct was done reasonably is to be assessed in an objective manner.

vi. Good faith is not established if the Respondent acted in bad faith, out of malice or for an improper purpose.

vii. Ultimate judgments as to such matters as ‘reasonableness’ and ‘good faith’ are ones of fact.”

97. The Tribunal accepts the Respondent’s evidence that the activity was undertaken in good faith and for a purpose in the public interest, namely ensuring the preparedness of the NSW Police Force to respond to a terrorist event.

98. In order to rely on the exception in s20C(2)(c), the Respondent must establish that the acts in question were also “reasonable” as well as having been undertaken “in good faith.”

99. In Sunol v Collier and Anor (No 2) [2012] NSWCA 44 Bathurst CJ, Presiding in the Court of Appeal stated at [41]:

…e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.

f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.

100. As stated by French J (as he then was) in Bropho Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 in relation to similar, though not identical Commonwealth legislation:

“A thing is done ‘reasonably’ in one of those protected activities…if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out.”

101. The Respondent bears the burden of establishing reliance upon the exceptions set out in s20C(2).

102. We find that the use of Palestinian and Arab keffiyahs in the training exercise was not reasonable for a number of reasons as set out below.

103. First, the wearing of keffiyahs by the “offenders” was not necessary to the operation and not proportionate to what was necessary to carry out the exercise. Use of the headscarves was not necessary to ensure that officers of the law were better prepared to deal with a terrorist threat. We accept the Applicant’s submission that balaclavas or similar apparel could equally as well have given the “shock value” and/or “fright factor” while protecting identity.

104. Secondly, Chief Inspector Green gave evidence during the hearing that he was not aware of any terrorist act in New South Wales or Australia where headscarves such as those used in the exercise had been used, although he was aware of some overseas. So use of the scarves was not grounded in the realities of policing potential terrorism in New South Wales or even Australia and therefore not “reasonable” in light of NSW or Australian realities. Nor was it necessary to simulate the potential reality of a terror attack in New South Wales.

105. Thirdly, a survey of the material in the Respondent’s Hearing Documents indicates that terrorists, even those linked to ISIL do not always use headscarves, but that groups who are not ISIL members may do so. On p175 there are photographs of people alleged to be terrorists wearing the keffiyah who are said to be Afghan Taliban, not members of ISIL. On 177 and 184 there are members of ISIL wearing it and on 183 a Ukrainian group (not said to be affiliated with ISIL) is wearing it.

106. While there are some images in the Respondent’s Hearing Notes that are simulated to look like “terrorists” such as those on pages 167, 168 and 179 and possibly 186, other photographs in the Respondent’s Hearing Documents such as those pp 164, 170, 171, depict actual terrorists not wearing the kaffiyeh and on 173 depict someone accused of plotting a terrorist offence in Australia not wearing a kaffiyah. There are also many photographs in the Respondent’s Hearing Notes depicting people who are obviously not terrorists wearing the kaffiyeh, as on pp 188, 194, 196,197, 198,199, perhaps 202, 206 – 217 of the Respondent’s hearing documents.

107. Thus, on the Respondent’s own evidence, it does not appear that members of ISIS/ISIL necessarily wear a Palestinian and/or Arab keffiyah, nor that it is only terrorists who do so. Sometimes terrorists wear a keffiyah and sometimes they do not. Others who are not members of ISIL or any other terrorist group wear those scarves. On the Applicant’s evidence and from what many members of the Australian public see on Australian media, many other ordinary members of the Palestinian and other Arab communities wear the keffiyah as part of their usual dress.

108. Given this evidence, it was not reasonable to simulate the reality of a terrorist event in Sydney that involved Islamic State/ISIL by clothing the "offenders” in what we have already found to be Palestinian and/or Arabic keffiyahs.

109. In summary:

1. The Tribunal accepts that the Exercise was undertaken in good faith,

2. It was reasonable to conduct an exercise to test and enhance the capability and preparedness of agencies to deal with a possible terrorist threat;

3. However the use of Palestinian and/or Arabic headscarves was neither necessary nor proportionate to the objectives sought to be achieved and was unreasonable because it did not reflect the realities of policing in New South Wales.

4. The objectives could equally have been achieved without dressing the perpetrators of violence in that way and by using balaclavas and masks for the “offenders”;

5. to dress the “offenders” in headscarves identified with particular cultural communities that exist in Australia, whether considered as Palestinians or Arab communities, was not required for the purpose of the exercise in helping keep NSW safe in the event of a terrorist incident.

110. As the exercise was not undertaken in a reasonable manner to the extent that the headscarves were used, it was not undertaken “reasonably” within the meaning of the Act.

111. In order to rely on the exception set out in s20C(2), the Respondent would need to establish that the relevant acts were done reasonably as well as in good faith. The Tribunal has found the relevant acts were not done reasonably. This means the Respondent cannot rely on the exception contained in s20C(2).

Summary of findings

112. For the reasons given above, we find that NSW Police Force, by allowing the two police officers portraying the armed offenders to wear keffiyahs associated with Palestinian and Arabic people, racially vilified Palestinians and Arabs.

Remedies

113. Under s108 (2) of the Act, if the Tribunal finds a complaint substantiated in whole or in part, it may do any one or more of the following:

1. except in respect of a matter referred to the Tribunal under section 95 (2), order the Respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct,

2. make an order enjoining the Respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

3. except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

4. order the Respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

5. in respect of a vilification complaint, order the Respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

6. make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

7. decline to take any further action in the matter.

114. In his Points of Claim the Applicant does not articulate a particular remedy. At the hearing the Applicant stated that the remedies he sought were as follows:

1. an apology;

2. that compensation be paid to a Palestinian association to educate young men as to the proper role of the NSW Police Force;

3. a program of education by the Anti-Discrimination Board to educate the police regarding racial vilification.

115. The Respondent submitted that if, against its submissions, we found in favour of the Applicant:

1. it would be appropriate to make a finding only;

2. an apology would not be appropriate as the Applicant was not the only person said to have been vilified;

3. compensation to him would not be appropriate as there is no loss on his part and there is no precedent for payment of money to a third party,

4. there is no jurisdiction to impose a fine; and

5. there is “no proper basis” to consider having the Anti-Discrimination Board establish an education program for the NSW Police Force regarding racial vilification as the Tribunal would need to be satisfied that a need for such a program has been demonstrated.

116. The learned textbook writers Neil Rees, Simon Rice and Dominique Allen state in Anti-Discrimination Law Second Edition, Federation Press, 2014 at 808 that:

“ Even though anti-discrimination legislation has existed in Australia for many years, the law concerning remedies is not well developed.”

117. The apology sought by the Applicant is not an unusual remedy to be sought by an Applicant and the Tribunal has the power to order an apology pursuant to s108(2)(d). It has done so in some other circumstances and declined to do so in others.

118. In this case, the Respondent is a responsible public agency, which exists for the safety, welfare and good order of the people of New South Wales.

119. At the time of the airing of footage and release of photographs for publicity regarding Exercise Pantograph, in response to complaints received from members of the public, the Report of the President of the Anti-Discrimination Board includes an article that reads, in part:

“Speaking on SBS Arabic24, NSW Police’s multicultural media liaison officer Tarek Al-Issawi apologised for any offence caused.

“There surely was no intention in any way to defame or insult any part of the community, and if some people felt insulted it was unintentional” he said.

“NSW Police of course apologise, as it apologised to many who called and objected to this and we admitted we are wrong and we apologised for it.”

The article continues, stating that:

“In a statement, the NSW Police said they did not intentionally stereotype.

“In relation to Exercise Pantograph, there was a significant operational need for the officers involved to have their identity concealed” a spokesperson said.

“The apparel the officers were wearing was purchased from an Army disposal store a number of years ago as jungle and desert-coloured camouflage.”

120. On one view, this second statement appears to be more limited than the apology apparently given by Mr Tarek Al-Issawi.

121. We order that an apology be issued in the following terms:

“On 17 and 18 October 2017, the NSW Police Force conducted a training exercise called Exercise Pantograph. The exercise simulated a terrorist or high risk incident in order to test the coordination and operational response to such an incident. On 18 October 2017 the NSW Police Force released photographs and video footage of the exercise to the media. The media publicised this material widely to the general public. During the training exercise, two officers who were portraying the active armed offenders wore headscarves that the NSW Civil and Administrative Tribunal found would have been identified by members of the public as being Palestinian and/or Arabic headscarves. The Tribunal found that it was not necessary to use these headscarves to achieve the objectives of the exercise. It found that using them had the capacity to incite members of the public to hatred and/or serious contempt of Palestinian and/or Arabic people. The NSW Police Force had no intention to vilify any racial group. However the Tribunal has confirmed that there does not need to be any intent for racial vilification to occur. NSW Police Force apologises for the use of these headscarves in the exercise.”

122. This apology must be published by the NSW Police Force within 40 days of this decision. It must be published by media release, using the same methods of publication and, to the extent possible, to the same outlets to which the original media release, video footage and photographs were released, including, but not limited to, the relevant NSW Police Force website and facebook page.

123. The Applicant seeks compensation not for himself, but for an organisation that is not named by him. He also seeks that an education program regarding racial vilification be put in place by the Respondent.

124. The Act does not allow us to order compensation for an unnamed organisation and we therefore decline to order compensation at all.

125. We are satisfied that this Complaint indicates there is a need for training or further training of the Respondent’s staff regarding racial vilification. We order that a program of education regarding racial vilification be instituted by the Respondent for serving officers of the rank of Chief Inspector and above and the NSW Police Force Multi Media Unit. This program should be created in co-operation with the Anti-Discrimination Board of NSW within six months from the date of these Orders. It should be implemented within a further two years from the date of these orders. It may be a “stand alone” program or a program implemented together with other aspects of the Respondent’s existing programs of education in relation to NSW anti-discrimination law.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 May 2019